Citation Nr: 9835245
Decision Date: 11/30/98 Archive Date: 12/02/98
DOCKET NO. 96-39 473 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for varicose veins and
trench mouth.
2. Entitlement to an increased (compensable) rating for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to
February 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from ratings actions in June and July 1996
by the Portland, Oregon, Regional Office (RO) of the
Department of Veterans Affairs (VA).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has varicose veins and trench
mouth which are due to injuries or disease incurred during
active service. He argues that service connection is
warranted for these disorders. He also claims that his
bilateral hearing loss is more severe than indicated by the
present disability evaluation, and that a compensable rating
is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims for
service connection for varicose veins and trench mouth are
well grounded. It is also the decision of the Board that the
preponderance of the evidence is against the claim for a
compensable rating for bilateral hearing loss.
FINDINGS OF FACT
1. The veteran has not provided competent medical evidence
demonstrating varicose veins and trench mouth due to an
injury or disease incurred, or aggravated, by active service.
2. All relevant evidence necessary for an equitable
disposition of the increased rating claim on appeal has been
obtained.
3. The veteran currently has Level IV hearing acuity in his
right ear and Level II hearing acuity in his left ear.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of well-grounded
claims for service connection for varicose veins and trench
mouth. 38 U.S.C.A. § 5107(a) (West 1991).
2. The criteria for a compensable rating for bilateral
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a)
(West 1991); 38 C.F.R. §§ 4.85, 4.86, 4.87, Tables VI, VII,
Diagnostic Code 6100 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection Claims
Background
Service dental records show that in November 1943, the
veteran had gingivitis and that in October 1944 the veteran
underwent Vincent’s treatment. The records are negative for
complaint or treatment of any chronic dental or varicose vein
disorders during active service. The veteran’s February 1946
separation examination revealed normal investing dental
tissues and normal blood vessels.
Private dental records dated from December 1985 to February
1990 include a diagnosis of unsalvageable “periodontically”
involved teeth. No opinion as to etiology of this disorder
was provided.
Private medical records dated in February 1996 noted
significantly large varicose veins to the right leg up to the
groin. No opinion as to etiology was provided.
In a statement received in April 1996, the veteran’s spouse
stated that the veteran’s varicose veins had been present
since 1960. She also stated that the veteran had severe gum
disease which had led to his present dental disorder.
During a VA examination in April 1996, the veteran reported
his varicose vein disorder began in the late 1040’s or early
1950’s. He stated he believed the disorder was related to a
severe right ankle sprain he incurred during active service.
The diagnoses included moderate varicose veins, right much
worse than left. The examiner noted that it was unlikely
that an ankle sprain in the 1940’s resulted in venous
varicosity.
VA dental examination in May 1996 noted a history of one
episode of “trench mouth,” defined as acute necrotizing
ulcerative gingivitis, in 1944. The examiner noted that the
one episode of trench mouth over 50 years earlier could not
be considered causative to the veteran’s present periodontal
disease.
At his personal hearing, the veteran testified that he had
teeth pulled in the 1980’s, but that in 1958 a dentist in
England recommended that the teeth be pulled at that time.
Transcript, p. 5 (January 1997). He could not remember if
the problem cleared in service or not, but that after
service, the dentist did not say that he had trench mouth.
He stated that during active service he fell down a cliff and
banged up his legs, which he believed caused his varicose
veins. Tr., p. 6.
Analysis
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. § 3.303 (1998).
Service connection for dental disability may be granted for
each missing or defective tooth and each disease of the
investing tissues, which are shown to have been incurred in
or aggravated by service. 38 U.S.C.A. § 1712 (West 1991 &
Supp. 1998); 38 C.F.R. § 3.381(a) (1998). Vincent’s disease,
with infrequent episodes of short duration in active service,
is considered an acute disorder and may not be service
connected; gingivitis is not considered a disease entity for
VA compensation purposes. 38 C.F.R. § 3.382(c) (1998).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d). For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
The United States Court of Veterans Appeal (Court) has held
that the chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service or during an
applicable presumptive period and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which, under the Court’s case law, lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be well grounded if the
condition is observed during service or any applicable
presumptive period, continuity of symptomatology is
demonstrated thereafter, and competent evidence relates the
present condition to that symptomatology. Savage v. Gober,
10 Vet. App. 488 (1997).
Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), a person who
submits a claim for benefits under a law administered by the
Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The Court has
held that a well-grounded claim is “a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden of § [5107(a)].” Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also
held that although a claim need not be conclusive, the
statute provides that it must be accompanied by evidence that
justifies a “belief by a fair and impartial individual”
that the claim is plausible. Tirpak v. Derwinski, 2 Vet.
App. 609, 610 (1992).
The Court has held that “where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is ‘plausible’
or ‘possible’ is required.” Grottveit v. Brown, 5 Vet. App.
91, 93 (1993) (citing Murphy, at 81). The Court has also
held that “Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. In the absence of
proof of a present disability there can be no valid claim.”
Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a)
(West 1991); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded. See
Grottveit, 5 Vet. App. at 93 (Court held that lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded); see also Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992) (Court held that a witness must be
competent in order for his statements or testimony to be
probative as to the facts under consideration).
In Caluza v. Brown, 7 Vet. App. 498, 506 (1995) the Court
reaffirmed these holdings, stating in order for a claim to be
well grounded there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the inservice injury or
disease and the current disability (medical evidence). In
the absence of competent medical evidence of a causal link to
service or evidence of chronicity or continuity of
symptomatology, a claim is not well grounded. Chelte v.
Brown, 10 Vet. App. 268, 271 (1997).
Based upon the evidence of record, the Board finds that
competent medical evidence has not been submitted
demonstrating that the veteran’s present varicose vein or
dental disorders are due to an injury or disease incurred in,
or aggravated by, active service. In fact, VA medical
opinions found it was unlikely that these disorders were
related to active service. The veteran had gingivitis and
was treated for Vincent’s in service, but has admitted that
he does not recall if the disability persisted and that the
dentist after service did not say that he had trench mouth.
In effect, there is no showing of chronic disability in
service or continuity of pertinent symptomatology following
active duty.
The only evidence of a causal relationship between the
claimed disorders and active service are the opinions of the
veteran and his spouse. While they are competent to testify
as to symptoms the veteran experiences, they are not
competent to provide a medical opinion because this requires
specialized medical knowledge. Grottveit, 5 Vet. App. at 93;
Espiritu, 2 Vet. App. at 494. Consequently, the Board finds
that the veteran has not submitted evidence of well-grounded
claims for service connection for varicose veins and trench
mouth. See 38 U.S.C.A. § 5107(a).
The Board further finds that the RO has advised the veteran
of the evidence necessary to establish a well grounded claim,
and that the veteran has not indicated the existence of any
additional evidence that would well ground these claims.
McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v.
Brown, 9 Vet. App. 341, 344 (1996), aff’d sub nom Epps v.
Gober, 126 F.3d 1464 (Fed. Cir. 1997).
Increased Rating Claim
Background
Service medical records show that in September 1945 the
veteran complained of poor hearing. The examiner’s diagnosis
was high frequency hearing loss, indicating nerve type
deafness.
Private medical records dated in January 1978 include a
diagnosis of perceptive hearing loss.
On the VA authorized audiological evaluation in April 1996,
pure tone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
5
40
80
80
LEFT
5
45
80
80
The average pure tone thresholds were 51 decibels in the
right ear and 53 decibels in the left ear. Speech audiometry
revealed speech recognition ability of 76 percent in the
right ear and of 84 percent in the left ear.
On the VA authorized audiological evaluation in January 1997,
pure tone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
10
40
75
80
LEFT
5
45
65
75
The average pure tone thresholds were 51 decibels in the
right ear and 48 decibels in the left ear. Speech audiometry
revealed speech recognition ability of 82 percent in the
right ear and of 84 percent in the left ear.
Analysis
Initially, the Board notes that the veteran’s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. See Murphy, 1 Vet. App. 78. In general, an
allegation of increased disability is sufficient to establish
a well-grounded claim seeking an increased rating. Proscelle
v. Derwinski, 2 Vet. App. 629 (1992). The Board is also
satisfied that all relevant facts have been properly
developed, and that no further assistance is required in
order to satisfy the duty to assist mandated by 38 U.S.C.A.
§ 5107(a).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1998).
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities (Ratings Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Ratings Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (1998).
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1000, 2000, 3000 and 4000 cycles per second.
To evaluate the degree of disability from bilateral service-
connected defective hearing, the revised Ratings Schedule
establishes 11 auditory acuity levels designated from Level I
for essentially normal acuity through Level XI for profound
deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to
6110 (1998). The assignment of disability ratings for
hearing impairment are derived by the mechanical application
of the Ratings Schedule to the numeric designations assigned
after audiometry evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345 (1992). The evaluations derived by
the Ratings Schedule make allowance for improvement by
hearing aids. 38 C.F.R. § 4.86 (1998).
In this case, recent VA audiometric evaluations result in
literal designations of Level IV hearing acuity in the right
ear and Level II hearing acuity in the left ear. See
38 C.F.R. § 4.87, Table VI (1998). The application of the
Ratings Schedule as described in Lendenmann establishes that
a noncompensable rating for bilateral hearing loss is
warranted under 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code
6100, Table VII (1998). Although the veteran sincerely
believes his disability warrants a compensable rating, the
evidence of record demonstrates that his hearing loss is
rated in accordance with his current level of disability as
set forth in applicable Ratings Schedule criteria. The Board
also notes that VA medical findings are consistent with the
veteran’s private audiological findings from about 18 years
earlier. Therefore, the Board finds the preponderance of the
evidence is against the veteran’s claim.
The Board has considered all potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the veteran or his representative, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the Board finds no provision upon which to
assign a higher rating.
When all the evidence is assembled, the Secretary, is then
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Board finds the preponderance of the evidence is against
the claim for a compensable rating for bilateral hearing
loss.
ORDER
Entitlement to service connection for varicose veins and
trench mouth is denied.
Entitlement to a compensable rating for bilateral hearing
loss is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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